What is the Legal Standard for Custody?

So now that we know from our prior post the difference between physical custody and legal custody, let’s talk about how one goes about obtaining custody.

In order to convince the court that it should grant you legal or physical custody, you must show evidence that such custody arrangement is “in the child’s best interests”. That is, you must show the court that the child custody arrangement that you are proposing is better for the child than the custody arrangement that the opposing party is proposing. Common factors that the court will consider in making this decision are the relative fitness of the parents, the resources of the parents to care for the child, the past history of caring for the child, location of the proposed residence and access to schools and hospitals, etc. These are only a few of the factors, but they provide an idea of the things that the court will likely consider.

Also, notice that the standard for child custody is the “child’s best interests”. The standard is not, “parent’s best interests”. The courts can be rather cold when it comes to considering the rights of parents in the world of custody. Under the law, when deciding custody, the court may only consider the child’s best interests and cannot consider what the parents want or whether one parent or the other deserves to have custody. As an extreme example, if both parents desperately want custody of a child but are clearly unfit as parents, the court may very well disregard the parent’s wishes and take the child away from both of them, instead placing the child in the care of the state or a foster parent.

Finally, on the issue of legal custody, there is one more hurdle to jump over. If you are proposing joint legal custody, in addition to showing evidence that joint legal custody is in the child’s best interests, you must show evidence that you and the other parent are able to communicate with each other and reach common decisions regarding important issues facing the child.


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